Social media use presents opportunities, challenges for Massachusetts communities

Thursday

Apr 6, 2017 at 3:54 PMApr 7, 2017 at 5:34 AM

The rise of social media has created new questions for cities and towns when it comes to preserving public records.

Gerry Tuoti Wicked Local Newsbank Editor

The rise of social media has created new questions for cities and towns when it comes to preserving public records.

“In some respects this becomes a moving target because these different platforms of social media continue to evolve,” said Brandon Moss, a municipal law attorney for Murphy, Hesse, Toomey & Lehane and town counsel for Bedford, Scituate and Mendon.

Nearly every Massachusetts city, town and government entity now use social media to reach and engage with the public. Under state law, any communication to and from an official government social media account is subject to public records disclosure. That includes private messages sent from official government accounts on Twitter, Facebook or other platforms.

“Basically, if it were on a piece of paper, would it be a public record? If the answer is yes, then it would be a public record,” said Brian McNiff, a spokesman for Secretary of the Commonwealth William Galvin’s office.

A set of guidelines from Galvin’s office recommends that cities and towns create their own archives of social media messages rather than relying on third-party hosts such as Facebook or Twitter to back up the posts. One way of archiving the records could consist of taking screenshots and downloading videos.

“The question is what kind of record can you keep? That’s a challenge,” said Lauren Goldberg, managing attorney for municipal law firm KP Law, which represents more than one-third of the cities and towns in Massachusetts. “It’s much easier to conceptualize how to retain a piece of paper than how to maintain a social media posting. This is the cutting edge of public records law.”

While Snapchat, which is designed to automatically delete messages after they’ve been viewed, isn’t widely used by government entities, it holds the potential to create complications for any city or town that uses it. Newer versions of Snapchat do allow users to save screenshots within a limited window of time.

“If something were sent out, it’s considered public record,” Moss said. “The question you have to ask yourself is if someone wants a copy of the message, can you produce it?”

The line between what is and what isn’t a public record can become somewhat blurry when public officials use personal, private social media accounts. The distinction may become even murkier when an official discusses government business on a private Facebook or Twitter account.

“The way I try to look at these issues, is looking at what hat is the person wearing when they send something out on social media,” Moss said. “Sometimes it becomes a thorny issue when it looks like someone’s wearing two hats.”

Under current law, there’s ample room for interpretation when it comes to public officials’ use of private social media accounts, Goldberg said.

“The public records law’s goal is to ensure information in the public domain ends up there,” she said. “Is posting something on Facebook about a matter you expect you’re going to have to deal with in a couple months a violation of the public records law? I do expect a court is going to have to deal with these things.”

In its current form, existing state law doesn’t provide a sufficient answer, she said.

Some cities and towns have adopted policies that address municipal officials’ use of private social media accounts.

In Easton, after a town Conservation Commission member used his private Facebook account last year to post content that was criticized as anti-Muslim and sexist, selectmen adopted a new policy that “public comments, in any forum, that contain racial slurs, express bigotry toward a group ... shall be considered conduct unbecoming a town official and shall constitute good cause for removal for any appointed official.”

Such policies, however, could be interpreted as limiting an individual’s First Amendment rights to free speech. That said, people are ultimately responsible for their own statements and actions, Moss said.

“At the end of the day, a person who posts whatever they want without discretion does so at their own peril,” he said. “It’s a balancing act.”

Attorney Elizabeth Valerio, a principal at the firm Deutsch Williams Brooks DeRensis & Holland, said any municipal social media account should contain a clear disclaimer that it is operated by the city or town.

“We recommend that municipalities adopt social media policies,” she said.

A sound municipal policy should designate which employees are responsible for maintaining the social media accounts and should require that the accounts be created with official, not private, email addresses. Town employees should not use official accounts to express personal views, she said.

Communities that operate their social media accounts as open forums could find themselves powerless to remove unwanted posts from third parties due to First Amendment and public records requirements. Alternatively, a municipal social media account could operate as a limited public forum. To do this, the municipality would adopt a policy stipulating terms of use that reserve the city or town’s right to remove comments that are off-topic, harassing, obscene or discriminatory. Careful removal of only posts that violate narrowly defined terms of use would not run counter to the First Amendment, according to Valerio.

Goldberg said it often takes time for the law to catch up to the technology.

“One of the things I say is it’s really not black and white,” she said. “We read about these things as if it’s a violation or not a violation. But in general, most of these things are gray areas. Right now, it’s pretty cutting-edge, even though some of these platforms have been around awhile.”